Allegations of workplace bullying continue to rise. It is critical that employers are aware of what constitutes bullying, and what their obligations are to address it.
What is bullying
In New Zealand, there is no legislative definition of bullying.
WorksSafe New Zealand Guidelines define bullying as “repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm.” It includes victimising, humiliating, intimidating, or threatening conduct. It may also include harassment, discrimination, or violence. However, these have their own distinct legal remedies.
Workplace bullying is different to workplace incivility, which refers to low-intensity rude behaviours, that may be hard to tell whether they’re intentional or not.
Workplace bullying can be personal/direct or task-related/indirect. For example personal conduct may include belittling remarks, exclusion and isolation, or threats. Task related bullying may include assigning unachievable tasks and deadlines, or denying resources to prevent someone from being able to complete their work effectively.
Bullying does not require intent, nor does it need to be deliberate. It is not limited to situations where there is a power imbalance, such as manager/subordinate. Bullying may also occur outside normal working hours, through social media, text and other messaging platforms.
Constructive feedback, managing performance or disciplining employees in line with workplace expectations and policies fall outside the Worksafe definition of bullying. Likewise, while bullying behaviours can be described as unfairness, unfairness alone, or a one-off case of rudeness or tactlessness will not always constitute bullying. However, a single incident of unreasonable behaviour could escalate into bullying and should not be ignored. It may also be appropriate to address this as potential misconduct.
Negative workplace behaviours, including bullying, are linked to many harmful consequences, including:
- decreased psychological wellbeing
- poor physical health
- reduced morale
- increased staff turnover
- greater incidences of conflict.
Accordingly, it is essential that employers are proactive in identifying and addressing behaviours that may amount to workplace bullying and incivility.
What are employer’s legal obligations regarding bullying?
Under the Health and Safety at Work Act 2015, employers have a duty to ensure the health and safety of workers. This includes psychological health. Employers have an obligation to take all reasonably practicable steps to create a safe work environment, and to address bullying that they are aware of.
Employers may also have individual obligations arising from their company’s policies relating to bullying. It is important that employers are familiar with and understand their policies, because these may create obligations that go beyond the WorkSafe Guidelines.
What should an employer do to prevent workplace bullying?
Prevention is always better than cure.
For employers to meet their obligations to provide a psychologically safe working environment, they should:
- Set clear expectations for all workers to create an organisational culture that values respect and civility.
- Model positive/constructive behaviour.
- Train staff to build psychological safety within teams, and equip employees with skills to address incivility.
- Implement workplace policies regarding expected behaviour.
- Regularly assess psychosocial risk factors in the workplace, and review the effectiveness of preventative measures. Adjust these where necessary.
- Respond to issues promptly when they are raised.
Bullying policies should set clear expectations for worker behaviour (whether contractors, employees, volunteers or others in the workplace). Policies should also provide clear guidance for employees regarding the process to follow if they have concerns.
Policies should be easily accessible, easily understood and reviewed regularly.
Where conduct of concern arises, it is essential that employers investigate it promptly and address it. Those in positions of leadership should be trained to ensure that they are role modelling desired behaviours within the workplace, use a healthy management style, and can identify and fairly address conduct of concern.
What steps should an employer take when a bullying complaint is made?
Workplace policies should guide employers in responding effectively to a complaint of workplace bullying.
Dealing with a complainant fairly
Fair process in working with a complainant will include the following features:
- Acknowledging the concern as soon as possible and offering the complainant support.
- Seeking advice early. This ensures an effective process from the outset, which is critical to creating trust from the complainant, respondent, witnesses and others in the workplace who may be involved in an investigation or potentially impacted by the issue.
- Assessing whether, based on the information received, the behaviour could meet the definition of bullying or other conduct of concern, or, whether further information is required.
- Communicating clearly with the complainant regarding what the process will be to respond to the concerns raised. Consulting the complainant regarding whether an informal resolution may be sought, or a formal investigation process is appropriate.
- Considering any interim measures that may be necessary to ensure the complainant’s safety and wellbeing and consulting with the complainant about these. Taking care not to undermine the process by over-reaching which may risk allegations of predetermination. However, reasonably practicable steps should be taken to minimise any risk of retaliation.
A common complaint during an investigation into workplace bullying is a lack of communication. So far as possible, while protecting and balancing obligations (including privacy) to others involved in an investigation, employers should provide updates to their employees about the process as it progresses, in order to meet their good faith obligations to communicate proactively.
Once findings from an investigation are made, the employer should take care to communicate factual findings fairly. An employee will ordinarily not be entitled to know whether disciplinary action has been taken against another person (i.e. the respondent).
Dealing with the respondent fairly
In any employment investigation, for allegations to be established, the conduct must be deemed more likely than not to have occurred. This is known as the civil standard of proof, or balance of probabilities.
Employers need to ensure that they have not predetermined any investigation into a complaint of workplace bullying, taken action without fairly obtaining all relevant information including providing the respondent with a fair opportunity to provide their view, or undertaken an unfair process.
Employers will need to investigate to determine whether the facts of the conduct alleged have occurred.
Features of a fair process in working with the respondent include:
- Informing the respondent about the allegations promptly.
- Communicating clearly with the respondent regarding the investigation process, as soon as this is known.
- Providing all relevant information to enable the employee a reasonable opportunity to consider and respond to the allegations.
- Appointing an impartial investigator with the required skills, time and impartiality to undertake a fair investigation. if an external investigator is engaged, ensuring that they are appropriately qualified, experienced and truly independent so as not to undermine the investigation due to allegations of bias.
- Communicating with the respondent so far as possible regarding the investigation process and progress.
- Offering the respondent support.
Once an investigation into the factual matters is concluded, an employer will need to consider whether a disciplinary process should follow, and if so, ensure this is fair and reasonable in all the circumstances.
As with any employment process, those responding to allegations of bullying should be made aware of the allegations and all relevant information; provided a reasonable opportunity to seek advice and respond; and have that response taken into account before a decision is made.
What happens after an investigation into allegations of workplace bullying?
Investigations are inherently challenging and unsettling for all involved. Employers should consider what restorative work may need to be undertaken following an investigation to address workplace relationships that may be strained following an investigation, regardless of the findings/outcome. If an employer is considering restorative practices, they should consult with the complainant and respondent before this is implemented.
Support
Our team of specialist employment lawyers at DTI Lawyers can assist. We recommend employers regularly review workplace policies, complaints and investigation processes for bullying in the workplace.
We are also regularly engaged to undertake independent investigations into workplace culture, and allegations of misconduct including sensitive matters such as bullying and harassment.
Please don’t hesitate to contact us on 07 282 0174, or reception@dtilawyers.co.nz
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